Practice Relating to Rule 84. The Protection of Civilians and Civilian Objects from the Effects of Incendiary Weapons
In 2010, in a resolution giving its consent to the Ministry of Foreign Affairs to submit an objection to the reservation by the United States of America to the 1980 Protocol III to the Convention on Certain Conventional Weapons (CCW), Poland’s Council of Ministers stated:
The Government agrees to submit an objection to the reservation made by the United States with respect to the prohibition of the use of incendiary weapons against military objectives located within areas of concentration of civilians.
Article 2, paragraphs 2 and 3, of Protocol III make a distinction with respect to the prohibition of the use of incendiary weapons. However, the US reservation does not distinguish between, on the one hand, an attack by means of air-delivered incendiary weapons and, on the other hand, an attack by means of incendiary weapons other than air-delivered. This means that the reservation accepts the possibility of an attack on military objectives located in areas where civilians are concentrated by means of any type of incendiary weapons, which is prohibited by Protocol III. The United States also reserves the right to use such weapons if their use will result in fewer casualties or less destruction than as a result of the use of alternative types of weapons. The right to use incendiary weapons would therefore depend on the decision of the military commander or the person responsible for the planning, authorizing and executing of military operations. Such decision would be assessed solely on the basis of this person’s analysis of available information.
It should be noted that in military practice this would create a danger of many erroneous decisions being taken, which would lead to casualties among civilians, excessive suffering and significant property damage.
In addition, when making the above reservation, the United States resorted to interpretation which is contrary to the purpose of the CCW Convention and Protocol III. … Therefore, as a result of the reservation made by the United States, the scope of protection of civilians provided for in Protocol III has been significantly reduced, and leads to the possibility of not only a breach of its provisions, but also a breach of fundamental norms of international law.
In 2010, in its objection to the reservation by the United States of America to the 1980 Protocol III to the Convention on Certain Conventional Weapons, Poland stated:
The Government of the Republic of Poland has examined the reservation made by the United States of America upon the ratification of the Protocol on prohibitions or restrictions on the use of incendiary weapons (Protocol III) to the Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects, done at Geneva, 10 October 1980 [in which the United States of America reserves the right to use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons, but in so doing will take all feasible precautions with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects].
The Government of the Republic of Poland considers the above-mentioned reservation as incompatible with the object and purpose of the Convention and therefore objects to it.
This objection shall not preclude the entry into force of the Convention between the Republic of Poland and the United States of America.